Broward County v. Plantation Imports, Inc., 81-1257

• Decision Date: 29 September 1982
• Docket Number: No. 81-1257,81-1257
• Citation: 419 So.2d 1145
• Parties: BROWARD COUNTY, Appellant, v. PLANTATION IMPORTS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1145

419 So.2d 1145

BROWARD COUNTY, Appellant, v. PLANTATION IMPORTS, INC., Appellee.

No. 81-1257.

District Court of Appeal of Florida,

Fourth District.

Sept. 29, 1982.

Harry A. Stewart, Gen. Counsel, and James A. Thomas, Asst. Gen. Counsel, Fort Lauderdale, for appellant.

Gary A. Esler of Esler & Kirschbaum, P. A., Fort Lauderdale, for appellee.

DOWNEY, Judge.

This appeal involves the constitutionality of the Broward County Consumer Protection Code enacted by county ordinance in 1977. The trial court found the code unconstitutional and Broward County has perfected this appeal.

In furtherance of the effort to minimize deceptive trade practices, the Broward County Commission passed certain ordinances which were designated as the Broward County Consumer Protection Code. Among other things, it established a Broward County Consumer Protection Board and the Broward County Consumer Affairs Division. The Consumer Affairs Division was authorized to bring consumer complaints to the Board to determine whether there was a violation of the Code. The Code purports to grant the Board certain powers, including the power to impose civil penalties for violation of the agency's orders.

As appellee points out in its brief

Following the enactment of the 1977 Ordinances, the Broward County general counsel requested an opinion from the Attorney General of the State of Florida as to the authority of a charter county to enact a valid ordinance permitting a consumer protection board to impose civil penalties. That request resulted in the issuance of Attorney General's Opinion 079-109 on December 18, 1979. In that Attorney General's Opinion, the question presented by BROWARD COUNTY and the summary of the response from the Attorney General's office was set forth as follows:

"QUESTION:

Does a charter county have the authority to enact a valid ordinance which permits the county's consumer protection board to impose a civil penalty for violation of the board's cease and desist orders?

SUMMARY:

Unless and until legislatively provided, a charter county does not have the authority to enact an ordinance which provides for the imposition of civil penalties by county agencies or which purports to authorize a county consumer protection board to impose a civil penalty for violation of that board's cease and desist orders."

Following receipt of the Attorney General's Opinion, the Legislature of the State of Florida enacted Special Act, Chapter 80-463. That Special Act purported to authorize the Board of County Commissioners of Broward County to grant by ordinance, powers to the Broward County Consumer Protection Board to impose certain civil penalties. Said Special Act provided that it would take effect, upon its approval by a majority vote, in a referendum held in conjunction with the general election in the County. By resolution, the Board of County Commissioners called a referendum and placed the Special Act on the ballot in the general election held in November, 1980. The Special Act received a majority in favor, and presumably became law upon the certification of the election results.

Subsequent to the effective date of Special Act 80-463, the Broward County Commission did not undertake to pass a new ordinance granting any powers to the Consumer Protection Board.

In January, 1981, Consumer Affairs served appellee with cease and desist demands involving five separate proceedings. Thereafter, appellee filed this suit for declaratory relief to declare certain sections of the Code and Special Act 80-463 to be invalid and unenforceable. The complaint presented three issues for the trial court's consideration:

I. Prior to the enactment of Special Act 80-463, did the Broward County Commissioners have the authority to enact a valid ordinance which permits the County's Consumer Protection Board to impose civil penalties?

II. Does the Legislature of the State of Florida have the authority under the Constitution of the State of Florida to enact a Special Act which authorizes a County Commission to enact an Ordinance permitting the County's Consumer Protection Board to impose civil penalties?

III. Assuming the constitutional validity of Special Act 80-463, did the passage of said Special Act have the effect of validating the previous 1977 Ordinances permitting the County's Consumer Protection Board to impose civil penalties?

The trial court granted a judgment on the pleadings in favor of appellee finding that the provisions of the Code "insofar as the provisions of said Ordinance purport to grant to the BROWARD COUNTY CONSUMER PROTECTION BOARD power to conduct proceedings and impose civil penalties, violate Article I, §§ 9 and 18, Article II, § 3, Article III, § 6, Article V, § 1 and Article VIII, § 1(j) of the Constitution of the State of Florida, and are in contravention of Florida Statutes Chapter 125.69." Next the judgment held that Special Act 80-463 grants no powers to the ...